Goodman v. Harness

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

RUSSELL GOODMAN, JR.;

RUSSELL GOODMAN, SR.;

and HELLEN SUE GOODMAN PLAINTIFFS

V. CASE NO. 3:22-CV-3017

JIMMY DALE HARNESS,

in his individual capacity,

and in his official capacity

as County Judge of Searcy County;

and JOHN DOES 1-10 DEFENDANTS

MEMORANDUM OPINION AND ORDER

Now before the Court are Defendants’ Motion to Dismiss First Amended

Complaint (Doc. 30) and Brief in Support (Doc. 31), Plaintiffs’ Response in Opposition

(Doc. 38), and Defendants’ Reply (Doc. 39). For the reasons explained below, the

Motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

Plaintiffs Russell Goodman, Sr., and his wife, Hellen Sue Goodman (“Mr. and

Mrs. Goodman”) own a tract of land south of Sanders Field Road in Searcy County,

Arkansas. Their son, separate Plaintiff Russell Goodman, Jr. (“Junior”), is described in

the Amended Complaint as a “manager” but not an owner of this land. (Doc. 25, p. 5).

It appears Junior received his parents’ permission sometime in 2021 to enter the land

and clear brush and grass from an existing road, which Plaintiffs refer to as “Goodman

Road.” Id. According to the Amended Complaint, Goodman Road had been

impassable, and no member of the public had used it for at least seven years before

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Junior cleared it.

The Amended Complaint does not specify exactly where Goodman Road lies in

relation to the Goodmans’ tract of land and Sanders Field Road. But Plaintiffs at least

imply that Goodman Road is different than Sanders Field Road and that Goodman

Road “traverses”—or cuts through—Mr. and Mrs. Goodman’s private property. Id.

Also, the Amended Complaint omits the fact that Goodman Road provides access to the

Buffalo National River, though Plaintiffs admit this fact in a brief filed the same day they

commenced this lawsuit. See Doc. 5, p. 6, Brief in Support of Motion for Temporary

Restraining Order and/or Preliminary Injunction (acknowledging “there are alternative

means available for the public to access the Buffalo River [other than Goodman Road],

for example, nearby Maumee North public access (within a few miles by dirt roads)”).

After Junior finished clearing Goodman Road on November 26, 2021, he placed

a gate across it. (Doc. 25, pp. 5, 15–16). The gate cost approximately $3,700.00. Id.

at p. 16. Sometime in January 2022, separate Defendant Jimmy Dale Harness, the

County Judge of Searcy County, allegedly “stated”—though to whom and in what

context the Amended Complaint does not specify—“that it was the position of Searcy

County that the Goodman Road was private property.” Id. Plaintiffs are also aware that

“an unknown member of the public called Judge Harness and expressed interest in

using the Goodman Road as if it were a county road.” Id. at p. 6. On March 24, 2022,

Judge Harness “expressed” to Junior that Searcy County’s position on Goodman Road

“had changed” and that the County no longer considered the road to be the Goodmans’

private property. Id. at p. 16. Then, on April 7, 2022, “the Goodmans informed

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Defendant Harness that neither he, nor any of his agents, had permission to enter the

Goodman Property or touch the Gate.” Id. Mr. and Mrs. Goodman claimed they “had

seen no documentation” up until that point to convince them that Goodman Road was a

county road. Id.

On April 13, unbeknownst to Mr. and Mrs. Goodman and Junior, Judge Harness

filed with the Searcy County Clerk an order “clarifying” that “Sanders Field Road” was a

public road and was “not to be blocked with a gate.” (Doc. 19-4).1 In other words, the

order clearly refers to Goodman Road but calls it “Sanders Field Road.” Id. In the

order, Judge Harness states that Junior “is believed to be the person who has installed

an [sic] gate and lock on Sanders Field Road.” Id. Judge Harness then orders that the

“lock on any gate blocking access to Sanders Field Road is to be cut off and the gate is

to be left open until removed.” Id. The gate is ordered “to be removed within 30 days.”

Id. Further, “[a]ny interested party” is directed to “contact the Office of the County

Judge to request further clarification or to request any hearing thought to be necessary

in this matter.” Id.

Mr. and Mrs. Goodman claim they never received a copy of this order before

County agents came to their land, cut the lock off the gate, and moved the gate off

Goodman Road on April 14, 2022. (Doc. 25, pp. 16–17). Mr. and Mrs. Goodman did

not contact the Office of the County Judge and request a hearing. They did not bring

1 The order is discussed and cited in the Amended Complaint and therefore is

embraced by that pleading. See Doc. 25, pp. 17–18. “Though ‘matters outside the

pleadings’ may not be considered in deciding a Rule 12 motion to dismiss, documents

necessarily embraced by the complaint are not matters outside the pleading.”

Enervations, Inc. v. Minn. Min. & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004).

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suit in state court; instead, they brought suit in this Court. According to the Amended

Complaint, on April 14 the “John Doe Defendants,” under the direction of Judge

Harness, “ripped out gate posts” and then “drove off the Goodman Road onto the

Goodman Property, which caused damage and destruction to the Goodman Property.”

Id. at p. 17.

The next day, April 15, unnamed “agents” allegedly under the direction of Judge

Harness returned to the Goodmans’ property and encountered Junior there with his two-

year-old child. Plaintiffs contend that these unidentified men threatened Junior with

assault and battery, attempted to inflict assault and battery on him, and “endangered the

life” of his child. Id.

Plaintiffs believe Judge Harness ordered his agents to remove the gate from

Goodman Road “[i]n retaliation for the viewpoints and opinions expressed by [Junior]”

on two Facebook pages maintained by Judge Harness. Id. at p. 6. Sometime in March

2022, Junior posted comments on Facebook that were “critical in nature of Judge

Harness’s performance, or lack thereof, of his official duties as County Judge.” Id.

Because Judge Harness did not like Junior’s viewpoints and opinions, he “blocked”

Junior from the “Jim Harness” Facebook page and the “Searcy County Office of

Emergency Management” (“Searcy County OEM”) Facebook page. Id. at p. 15. Once

Junior was “blocked,” he was “prevent[ed] . . . from commenting on the Defendant’s

posts and events” on these two Facebook pages. Id.

Junior acknowledges that “alternative means exist[ed] to view the Defendant’s

Facebook pages/profiles” but contends Judge Harness’s decision to block him from

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Facebook violated his First Amendment rights because Junior was no longer able to

“participate in discussions or comment threads on the ‘Jim Harness’ and the ‘Searcy

County Office of Emergency Management’ pages/profiles” or “participate in public

discourse by responding to the Defendant’s posts and events . . . .” Id. at pp. 14–15.2

Plaintiffs assert that this Court’s subject matter jurisdiction arises under 28 U.S.C.

§§ 1331 (federal question jurisdiction) and 1343 (civil rights jurisdiction). There are also

a number of state law claims in the Amended Complaint, and Plaintiffs suggest the

Court should exert supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367.

Defendants’ Motion to Dismiss asks the Court to consider whether Plaintiffs’ federal and

state claims survive scrutiny under Federal Rule of Civil Procedure 12(b)(6). The Court

is also obligated to consider whether Mr. and Mrs. Goodman have adequately

exhausted state remedies before seeking relief in federal court for their Fifth

Amendment “takings” claim. The same is true with regard to any federal Due Process

claim they assert with respect to the “taking.”

The federal claims against Judge Harness, Searcy County, and the John Does

arise under 42 U.S.C. § 1983. Plaintiffs bring individual-capacity claims under § 1983

against Judge Harness and presumably the John Does who were acting under his

2 It bears mentioning that the Amended Complaint sometimes refers to “the Plaintiffs” as

having collectively suffered a violation of “their” First Amendment rights when “they”

were blocked from commenting on certain Facebook pages. See, e.g., id. at pp. 14–15.

However, the Amended Complaint reveals no facts to plausibly suggest that either Mr.

or Mrs. Goodman was blocked from Facebook. The Amended Complaint specifically

claims that “Defendant has blocked Russell Goodman, Jr. from the ‘Jim Harness’ and

the ‘Searcy County Office of Emergency Management’ pages/profiles.” (Doc. 25, p. 15)

(emphasis added). No similar facts are pleaded with respect to Mr. or Mrs. Goodman.

Therefore, under Rule 12(b)(6), only Junior has asserted a First Amendment injury, and

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direction. Individual-capacity claims under § 1983 require a showing that an official,

acting under color of state law, caused the deprivation of an individual’s federal rights.

See Clay v. Conlee, 815 F.2d 1164, 1169–70 (8th Cir. 1987). Plaintiffs also bring

official-capacity claims under § 1983. An official-capacity suit is another way of

pleading an action directly against the public entity employing the official—which in this

case is Judge Harness’s employer, Searcy County, Arkansas. See id. at 1170 (finding

that suit against an individual in his official capacity “is tantamount to an action directly

against the public entity of which the official is an agent”).

Counts 1, 2, and 3 of the Amended Complaint describe the First Amendment

violations brought by Junior. These Counts collectively claim that Judge Harness

violated Junior’s First Amendment rights under color of law by “block[ing]” him from

commenting and posting on the “Jim Harness” and “Searcy County OEM” Facebook

pages/profiles. (Doc. 25, p. 15). Junior contends that after he was blocked he could

not: (1) engage in public discussions on the two Facebook pages, which he

characterizes as public forums, (2) view and comment on “official statements” Judge

Harness made available to the general public, and (3) use these pages to petition the

government for redress of any grievances. Id. at p. 19. Junior analogizes the two

Facebook pages to “digital town hall[s] where individual users receive information about

Arkansas government and exchange their views on matters of public concern.” Id. In

Counts 1–3, Junior asks the Court to declare that Judge Harness violated his First

Amendment rights and order Judge Harness to “unblock” him from the two Facebook

only he has standing to bring the First Amendment claims.

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pages. Id. at p. 20. He further asks the Court to direct Judge Harness “or his office, [to]

maintain records documenting the basis for any future decision to restrict a Facebook

user’s ability to interact with his official social media accounts . . . .” Id. Finally, Junior

demands damages for the violation of his First Amendment rights.

Counts 4, 12, and 13 are brought by Mr. and Mrs. Goodman, the purported

owners of Goodman Road,3 and assert a deprivation of their Fifth Amendment rights4

through the unconstitutional “taking” of their property. Count 4 explains that Goodman

Road is, and has always been, Mr. and Mrs. Goodman’s private property and was

“taken” by Searcy County—through Judge Harness—without just compensation. Mr.

and Mrs. Goodman maintain that Judge Harness’s April 13 order designating the road

as “public” is void and unconstitutional because it was entered “without notice.” Id. at p.

24. They demand Judge Harness provide them with proper notice in the future of any

actions taken with respect to the road, and they seek money damages and declaratory

relief for the unconstitutional “taking.” Counts 12 and 13 are largely duplicative of Count

4. Count 12 simply seeks a declaration that Judge Harness’s April 13 order resulted in

an unconstitutional taking, while Count 13 seeks a judicial declaration that the April 13

order is void for vagueness under the Due Process Clause of the Fourteenth

3 Just as only Junior has standing to bring the First Amendment claims, only Mr. and

Mrs. Goodman have standing to bring the “takings” claim, as only they are alleged to be

the owners of the real property “taken” by Searcy County.

4 Count 4 also cites to the parallel “takings clause” in the Arkansas Constitution at

Article II, Section 2. The Court is not aware that the Arkansas Constitution provides

rights and privileges with respect to governmental “takings” that are substantively any

different than those provided by the U.S. Constitution.

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Amendment “[b]ecause of the lack of precise standards, coordinates, boundary

descriptions, or other land description to judge compliance.” Id. at p. 34. In other

words, Count 13 asserts that the April 13 order’s reference to “Sanders Field Road” is

too vague to give Mr. and Mrs. Goodman, or any other members of the public, fair

notice of the property rights claimed by Searcy County on behalf of the public.5

Count 9 sets forth the official-capacity claims against Judge Harness/Searcy

County pursuant to § 1983. Plaintiffs blame Searcy County for “fail[ing] to control

Defendant Harness in the face of an obvious need for training to prevent the violations

described [in the Amended Complaint],” for “adopt[ing] and enforc[ing] an official policy

or custom of utiliz[ing] the arms of County Government for [Judge Harness’s] own

personal gain,” and for “concealing the fact Judge Harness was disqualified to be a

County Judge.” (Doc. 25, pp. 27–28). Count 10 appears to be an additional official-

capacity claim characterizing Judge Harness’s actions as an unconstitutional “land

grab” and asking for declaratory and injunctive relief barring all members of the Searcy

County Quorum Court, “mainly Judge Harness,” from continuing the Quorum Court’s

alleged “policy, practice, or custom of enforcing land grabs . . . .” Id. at p. 31.6

Counts 5, 6, 7, and 8 are state law claims related to the “taking” of Goodman

Road. Count 5 is a cause of action for the tort of civil trespass; Count 6 is a private

claim for criminal trespass under Arkansas Code § 5-39-203; Count 7 is the tort of

5 This position is ironic inasmuch as Plaintiffs have failed to provide a specific

description of “Goodman Road” in the Amended Complaint.

6 Neither the Searcy County Quorum Court nor any of its members have been named

as defendants in this lawsuit.

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abuse of process concerning the April 13 order and all subsequent actions taken by

Judge Harness with respect to the road; and Count 8 alleges the tort of civil conspiracy

between Judge Harness and his subordinates, the John Doe Defendants.

Count 11 seeks both preliminary and permanent injunctive relief as to the

“continuous and repeated trespasses upon Plaintiffs’ real property” related to the April

13 order and the alleged “taking” of Goodman Road. Id. at p. 31. The Goodmans ask

that Judge Harness (and anyone working for him in his official capacity) be enjoined

from “accessing or entering Goodman Property . . . damaging and destroying the

Plaintiffs’ property, and . . . threatening or attempting to inflict assault and battery on the

Goodmans.” (Doc. 25, pp. 31–32).

Finally, Count 14 seeks a declaratory judgment that Judge Harness is not fit to

hold the office of County Judge. The Court is not aware of any private right of action

under the Arkansas Constitution to remove a duly elected individual from office. Count

14 is therefore frivolous and will be DISMISSED WITHOUT PREJUDICE at the

conclusion of this Order without further discussion.

II. LEGAL STANDARDS

A. Rule 12(b)(6): Stating a Plausible Claim

A complaint must be dismissed under Rule 12(b)(6) for failure to state a claim

upon which relief can be granted if the complaint fails to plead “enough facts to state a

claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007). “Factual allegations must be enough to raise a right to relief above the

speculative level . . . .” Id. at 555. Courts must liberally construe the complaint in the

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light most favorable to the plaintiff and accept the factual allegations as

true. See Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008)

(stating that in a motion to dismiss, courts accept as true all factual allegations in the

complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (explaining that

courts should liberally construe the complaint in the light most favorable to the plaintiff).

However, “[w]here the allegations show on the face of the complaint there is

some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v.

Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Courts “are not

bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Legal conclusions

must be supported by factual allegations to survive a motion to dismiss. Id. at 679.

B. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction, and as such, are obligated to

examine the basis for their jurisdiction. “Lack of subject matter jurisdiction, unlike many

other objections to the jurisdiction of a particular court, cannot be waived. It may be

raised at any time by a party to an action, or by the court sua sponte.” Bueford v.

Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993).

C. Supplemental Jurisdiction

Once original jurisdiction has been established over one or more claims asserted

in an action, the federal court may exercise supplemental jurisdiction over any state law

claims which it would otherwise lack an independent basis for jurisdiction. Carnegie–

Mellon Univ. v. Cohill, 484 U.S. 343, 349–50 (1988). Pursuant to 28 U.S.C. § 1367(a),

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such supplemental jurisdiction is proper when the complaint brings state law claims

“that are so related to claims in the action within such original jurisdiction that they form

part of the same case or controversy under Article III of the United States Constitution.”

Claims are considered to be part of the same “case or controversy” when they “derive

from a common nucleus of operative fact and are such that [a plaintiff] would ordinarily

be expected to try them all in one judicial proceeding.” Kan. Pub. Emps. Ret. Sys. v.

Reimer & Koger, Assocs., Inc., 77 F.3d 1063, 1067 (8th Cir. 1996) (quotation marks and

citation omitted). Accordingly, supplemental jurisdiction exists where “the relationship

between [the federal question] claim and the state claim permits the conclusion that the

entire action before the court comprises but one constitutional ‘case.’” United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).

“After establishing that supplemental jurisdiction encompasses ‘other claims’ in

the same case or controversy as a claim within the district courts' original jurisdiction . . .

[§ 1367(a)] confirms the discretionary nature of supplemental jurisdiction by

enumerating the circumstances in which district courts can refuse its exercise . . . .” City

of Chicago v. Int’l Coll of Surgeons, 522 U.S. 156, 173 (1997). In particular, “[d]istrict

courts also may be obligated not to decide state law claims (or to stay their adjudication)

where one of the abstention doctrines applies.” Id. (citing Quackenbush v. Allstate Ins.

Co., 517 U.S. 706, 716 (1996)).

III. DISCUSSION

A. Federal Claims

1. First Amendment—Individual Capacity

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Counts 1, 2, and 3 assert that Judge Harness violated Junior’s First Amendment

rights when he “blocked” Junior from commenting, “liking,” or “disliking” the comments

of other users on the “Jim Harness” and “Searcy County OEM” Facebook pages. The

Amended Complaint uses the terms “blocking” and “banning” interchangeably when

discussing Facebook access. Junior agrees that a “banned” user “can still view the

banning page but is prevented from using the Facebook platform to search for or reply

to posts or other updates on the banning page.” (Doc. 25, p. 9). Below, the Court will

discuss whether any First Amendment claim has been stated as to each of the

Facebook pages at issue.

a. “Jim Harness” Facebook Page

Junior maintains that Judge Harness uses the “Jim Harness” Facebook page, at

least in part, “to carry out the business of County Judge of Searcy County, and uses it to

publish information about government services and opportunities to his constituents.”

Id. at p. 10. The “Jim Harness” page has “approximately 1,300 friends,” but Junior is no

longer one of them. Id. at p. 12. Junior claims that Judge Harness acted under color of

state law when he blocked Junior from commenting on the “Jim Harness” Facebook

page, because, at that point, the page had been transformed from a purely personal

social media page into a virtual public forum.

At this early stage of the litigation and with only the facts in the Amended

Complaint before it, the Court knows very little about how Judge Harness operated the

“Jim Harness” Facebook page at the time he blocked Junior. Judge Harness asserts he

is entitled to qualified immunity, which “shields federal and state officials from money

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damages unless a plaintiff pleads facts showing (1) that the official violated a statutory

or constitutional right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

If the “Jim Harness” Facebook page is, as Judge Harness insists, just a personal

Facebook page in which he merely announced his reelection campaign, posted photos

of his family and friends, and only occasionally provided updates on County business,

then this page would not likely bear enough indicia of an official state-run account to

satisfy § 1983’s color-of-state-law requirement under clearly established Eighth Circuit

law. In Campbell v. Reisch, a case decided by the Eighth Circuit on January 27, 2021—

before Judge Harness blocked Junior from Facebook—a Missouri state senator was

found not to have acted under color of state law when she blocked a constituent from a

Twitter page that she had created to announce her candidacy for office. 986 F.3d 822,

823 (8th Cir. 2021).

The Reisch court observed that a personal social media page is not transformed

into a public forum simply because the owner of the page holds public office. It is

axiomatic that “acts that public officials take in ‘the ambit of their personal pursuits’ do

not trigger § 1983 liability.” Id. at 824 (quoting Magee v. Trs. of Hamline Univ., 747 F.3d

532, 535 (8th Cir. 2014)). The Reisch court cited extensively to two out-of-circuit

decisions involving social media blocking, Knight First Amendment Institute at Columbia

University v. Trump, 928 F.3d 226, 235–36 (2d Cir. 2019), and Davison v. Randall, 912

F.3d 666, 679–80 (4th Cir. 2019). Without deciding whether the Knight approach or the

Davison approach was correct, the Eighth Circuit discussed both opinions and then

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applied their general principles to the facts concerning Senator Reisch’s Twitter account

to hold that she did not transform her Twitter page into a public forum. See 986 F.3d at

825–26.

In view of the holding in Reisch, it has been clearly established in this circuit that

“[a] private [social media] account can turn into a governmental one if it becomes an

organ of official business . . .” Id. at 826. However, proving that an official’s social

media account has been transformed in this way will require fact-intensive analysis of

the account’s history and usage. Some important factors considered by the Eighth

Circuit include: (1) whether the social media account was started before the owner

became a public official; (2) the overall “theme” of the owner’s postings on the account;

(3) whether the account was only occasionally used to provide updates on legislation or

to explain the effect of recently enacted laws; and (4) whether the main purpose of the

postings was for the official to campaign for office or to “emphasize [the official’s]

suitability for public office.” Id. at 827.

At the Rule 12 stage of these proceedings, only the facts in the Amended

Complaint may be considered. Assuming these facts are true, Junior has plausibly

stated a violation of his First Amendment rights. He contends Judge Harness

established the “Jim Harness” Facebook page while he was serving as County Judge

and used the page “to carry out the business of County Judge of Searcy County,” “to

publish information about government services and opportunities,” “to deliver public

safety messages,” “to inform his constituents of volunteer opportunities,” and “to

campaign for his election and reelection.” (Doc. 25, pp. 10–12). Junior maintains the

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“Jim Harness” Facebook page was a public forum, which Judge Harness blocked him

from participating in because he disagreed with Junior’s views and opinions. Id. at p.

19. Given these facts, the Court cannot say at this time that Junior did not suffer a

violation of his First Amendment rights and that those rights were not clearly established

at the time of the alleged violations.

Judge Harness may be entitled to qualified immunity at some later point in this

litigation, but for now, Junior’s First Amendment claims concerning the “Jim Harness”

page survive Defendants’ Motion to Dismiss.

b. Searcy County OEM Facebook Page

The Amended Complaint claims the “Searcy County OEM” Facebook page is

used by Judge Harness in his official capacity “to deliver crucial information about

COVID-19.” (Doc. 25, p. 13).7 Comment threads on this Facebook page are “important

forums for discussion and debate about community events, as well as the Defendant’s

policy positions and official acts.” Id. Junior contends he was not entitled to comment on

this page, view the comments of others, or engage in the types of debates with other

citizens that one would ordinarily be permitted to participate in on a government-

sponsored Facebook page.

First, the Court observes that this Facebook page is quite different from the “Jim

Harness” page. The “Jim Harness” page is a personal page that Judge Harness

7 Judge Harness protests that this page no longer exists, so there is no possibility for

Junior to obtain prospective injunctive relief. Even if that is true, the claim is not

necessarily moot in its entirety because Junior has also demanded “nominal and

punitive damages” for the alleged violation of his First Amendment rights. (Doc. 25, p.

3).

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allegedly transformed into a limited public forum by virtue of his use and treatment of

the page as essentially official and governmental in nature. By contrast, the “Searcy

County OEM” Facebook page is an official social media page of Searcy County. If, as

the Amended Complaint contends, this page were interactive in nature and a means for

citizens to protest the actions of their government and discuss with their fellow citizens

the important issues of the day, then it is plausible that Judge Harness, acting in his

personal capacity, barred Junior from viewing, posting, or interacting with this public

page because of Junior’s viewpoint and opinions—in violation of Junior’s First

Amendment rights.

Second, as to the question of whether Judge Harness is entitled to qualified

immunity for his decision to block Junior from this County Facebook page, the Court

finds that Junior has sufficiently stated a violation of his First Amendment rights and that

those rights were clearly established at the time, per the Eighth Circuit’s opinion in

Reisch. Qualified immunity is therefore denied as to the allegations concerning the

“Searcy County OEM” Facebook page.

2. First Amendment—Official Capacity

In Count 3, Plaintiffs assert: “The actions of Defendant Harness, a public official

acting under color of State law and whose actions are attributable to Searcy County,

Arkansas, constitute violations of the Plaintiffs’ First Amendment rights.” (Doc. 25, p. 22)

(emphasis added). Then, in Count 9, Plaintiffs state generally that they are bringing

official-capacity claims under § 1983 as to the “policies and practices . . . implemented

by Defendant Harness, and the agents, officials, employees and all persons acting in

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concert with them under color of state law” that are “the proximate cause of Plaintiffs’

ongoing deprivation of due process rights secured by the United States Constitution

under the First, Fifth, Seventh, Eighth, and Fourteenth Amendments . . . .” Id. at p. 27

(emphasis added).

In Pembaur v. City of Cincinnati the Supreme Court found that an official “acting

as the final decisionmaker for the county” took an action that made the county “liable

under § 1983.” 475 U.S. 469, 485 (1986). In Pembaur, a county prosecutor’s

“considered decision based on his understanding of the law” subjected the county to

liability when that decision “directly caused the violation of [an individual’s] Fourth

Amendment rights.” Id. at 484. The county prosecutor had commanded sheriff’s

deputies to forcibly enter an individual’s private property to find and serve witnesses

who had been subpoenaed to appear before the grand jury. Id. at 472–73. The

officers, acting on the prosecutor’s instructions, “obtained an axe and chopped down the

door.” Id. at 473. Under those circumstances, the county prosecutor’s single command

established county policy and subjected the county to liability under § 1983.

“To analyze whether a single decision of a government official constitutes an

official policy, we look to state law to determine whether the government official

possesses ‘final policymaking authority in the area in which the challenged conduct

occurred.’” Thompson v. Shock, 852 F.3d 786, 793 (8th Cir. 2017) (quoting Williams v.

Butler, 863 F.2d 1398, 1401 (8th Cir. 1988)). Searcy County’s chief executive—the

County Judge—may only exercise those powers reserved for him in the Arkansas

Constitution at Amendment 55, § 3, and as those powers are further defined at

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Arkansas Code § 14-14-1102.

The Amended Complaint states no facts to support the notion that Judge

Harness is considered under state law to be the final decisionmaker for Searcy County

with respect to the maintenance of the County’s official OEM Facebook page. That duty

certainly does not appear in the Arkansas Constitution or in the Arkansas Code, and

Plaintiffs do not assert Judge Harness maintained that Facebook page in accordance

with a particular custom of Searcy County that has the force of law. See Thompson,

852 F.3d at 793 (“To determine whether a government official serves as the final

policymaker, we consult two sources: (1) state and local positive law and (2) state and

local custom or usage having the force of law.” (quotation marks and citation omitted)).

Without further facts to plausibly suggest that the maintenance of County websites and

social media pages falls within the sole authority of the County Judge, the Court cannot

construe an official-capacity claim against Searcy County. The First Amendment

official-capacity claim is therefore DISMISSED WITHOUT PREJUDICE.

3. Fifth and Fourteenth Amendments: “Takings” and Due Process

The Court assumes for the purpose of evaluating the Motion to Dismiss that

Judge Harness failed to provide Mr. and Mrs. Goodman with appropriate notice of his

April 13 order regarding Goodman Road, in violation of Arkansas law. Even so, this

failure does not implicate the federal Constitution, since “a sovereign vested with the

power of eminent domain may exercise that power consistent with the constitution

without providing prior notice, hearing or compensation so long as there exists an

adequate [postdeprivation] mechanism for obtaining compensation.” Collier v. City of

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Springdale, 733 F.2d 1311, 1314 (8th Cir. 1984) cert. denied, 469 U.S. 857 (1984)

(alteration in original). “[T]he mere exercise of the sovereign's power of eminent domain

is not offensive to due process.” Id. Moreover, courts “have refused to find a cause of

action under 42 U.S.C. § 1983 where a plaintiff alleges a ‘taking’ of his property by the

state without due process without first attempting to avail himself of the state

mechanisms for compensation following the de facto appropriation.” Id. at 1314–15.

Mr. and Mrs. Goodman bypassed local and state court processes for obtaining

relief in favor of bringing their complaints directly to federal court. But the law is clear

that a plaintiff must exhaust all state-law remedies before seeking remedies for an

alleged “taking” under the United States Constitution. See Williamson County Reg’l

Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195 (1985); McKenzie v. City of

White Hall, 112 F.3d 313, 317 (8th Cir. 1997).

The Goodmans readily admit they did not attempt to access any state law

procedures for contesting Judge Harness’s order concerning the character and use of

Goodman Road. They explain they “were not parties to the docket that produced the

Sham Order” and assume on that basis—without citation to law—that they were not

obligated to pursue state law remedies. (Doc. 25, p. 31). However, there are only

narrow exceptions to the rule of exhaustion, and Plaintiffs bear “the heavy burden of

showing that the state remedy is inadequate.” Cormack v. Settle-Beshears, 474 F.3d

528, 531 (8th Cir. 2007) (cleaned up). They have failed to do so here. Under clear

Eighth Circuit precedent Plaintiffs “must seek compensation from the state before

proceeding to federal court . . . even in a physical taking case. This is so because when

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the state provides an adequate process for obtaining compensation, no Fifth

Amendment violation occurs until compensation is denied.” McKenzie, 112 F.3d at 317

(internal citations omitted). “If the state provides an adequate remedy, then the federal

court will not entertain jurisdiction of the case; otherwise it ‘would be an unwarranted

interference with state court jurisdiction.’” Harris v. Mo. Conservation Comm’n, 790 F.2d

678, 680 (8th Cir. 1986) (affirming district court’s dismissal of §1983 “takings” claim

based on lack of subject matter jurisdiction) (citing Collier, 733 F.2d at 1315). “To

assume jurisdiction in a case of this type would mean the opening of a floodgate to a

multiplicity of federal actions involving all aspects of state eminent domain proceedings

which in truth should be adjudicated under state procedures and in state forums.”

Collier, 733 F.2d at 1317.

In Chamberlain v. Newton County, the Arkansas Supreme Court evaluated the

case of a landowner who, like the Goodmans, maintained that her road had been

unlawfully “taken” by the county. 266 Ark. 516 (1979). The court held that the

landowner’s “only remedy against Newton County was to file a claim in the County

Court of Newton County for just compensation for a completed taking. Exclusive

jurisdiction of appellant’s claim for compensation is vested in the County Court of

Newton County as a matter relating to county roads.” Id. at 521. The same analysis

holds true in the Goodmans’ case with respect to the remedies available to them in the

County Court of Searcy County.

Because Mr. and Mrs. Goodman failed to exhaust state remedies before

pursuing their federal “takings” claims, the Court lacks subject matter jurisdiction over

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these claims. For these reasons, all federal claims under § 1983 relating to the road are

DISMISSED WITHOUT PREJUDICE.

B. State Law Claims and First Amendment Retaliation

Counts 4–8 of the Amended Complaint assert state law claims related to the

alleged “taking” of Goodman Road by Judge Harness/Searcy County. First, the Court

observes that the claims for trespass, abuse of process, and civil conspiracy are

predicated on the facts surrounding the “takings” claim, over which the Court lacks

subject matter jurisdiction. Second, the facts material to the torts do not overlap with

the facts material to the First Amendment claims. It follows that since the “takings”

claim has been dismissed, there is likely no supplemental jurisdiction over the torts

related to the alleged “taking.”

However, if the Court assumes for the sake of argument that the torts and the

direct First Amendment claims in Counts 1–3 form part of the same “case or

controversy” under 28 U.S.C. § 1367(a), the Court nevertheless declines to exert

supplemental jurisdiction pursuant to the abstention doctrine established in Railroad

Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). “The Pullman abstention

doctrine counsels restraint in the use of federal judicial resources under certain

circumstances.” Robinson v. City of Omaha, Neb., 866 F.2d 1042, 1043 (8th Cir. 1989).

“Pullman requires a federal court to refrain from exercising jurisdiction when the case

involves a potentially controlling issue of state law that is unclear, and the decision of

this issue by the state courts could avoid or materially alter the need for a decision on

federal constitutional grounds.” Id. (quoting Moe v. Brookings Cnty., 659 F.2d 880, 883

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(8th Cir. 1981)).

Here, the state court’s determination as to the disposition of the road controls

whether the torts of trespass, abuse of process, and civil conspiracy were committed by

Defendants. Accordingly, the Court declines to exert supplemental jurisdiction over all

state law claims in Counts 4–8, and they are DISMISSED WITHOUT PREJUDICE.

The Court will also dismiss any First Amendment retaliation claim that may

reasonably be construed from the Amended Complaint. Plaintiffs assert that the

“taking” of Goodman Road—and all state law torts associated with that “taking”—was

“[i]n retaliation for the viewpoints and opinions expressed by [Junior].” (Doc. 25, p. 6).

Though the word “retaliation” is sprinkled here and there throughout the Amended

Complaint, it is unclear whether Plaintiffs intend those references to serve as the basis

for a separate First Amendment retaliation claim. It could just as well be true that

Plaintiffs knew their First and Fifth Amendment claims were factually unrelated and

suggested retaliation as a means of justifying their decision to file all these claims in a

single lawsuit.

Regardless, even if the Court were to assume Plaintiffs sufficiently pleaded a

First Amendment retaliation claim, the Court lacks subject matter jurisdiction over the

claim because the Court cannot make a finding that Mr. and Mrs. Goodman suffered an

injury; that finding is reserved for the state court. Accordingly, the First Amendment

retaliation claim is DISMISSED WITHOUT PREJUDICE.

IV. CONCLUSION

IT IS ORDERED that Defendants’ Motion to Dismiss First Amended Complaint

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(Doc. 30) is GRANTED IN PART AND DENIED IN PART as follows:

e Counts 1-3 survive dismissal, as separate Plaintiff Russell Goodman,

Junior has stated plausible First Amendment individual-capacity claims as

set forth herein against separate Defendant Jimmy Dale Harness;

e Counts 4-8 and 11-13 are DISMISSED WITHOUT PREJUDICE for lack

of subject matter jurisdiction under Rule 12(b)(1); and

e Counts 9, 10, and 14 are DISMISSED WITHOUT PREJUDICE under Rule

12(b)(6).

As the only causes of action remaining in the lawsuit are the § 1983 claims

between Plaintiff Russell Goodman, Junior and Defendant Jimmy Dale Harness for

alleged First Amendment violations, IT IS FURTHER ORDERED that all other Plaintiffs

and Defendants in the lawsuit are DISMISSED WITHOUT PREJUDICE.

Plaintiffs counsel is directed to advise the Court in an email with a copy to

opposing counsel as to the status of the Motion for Temporary Restraining Order and/or

Preliminary Injunction (Doc. 4) and need for an evidentiary hearing on that motion.

Even if the motion is now moot, the Court anticipates the Case Management Hearing

will take place as scheduled on June 17.

IT IS SO ORDERED on this 16" day of June, 2022.

UNITED STATES DISTRICT JUDGE

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